Potential Liability For Hyperlinking: Crookes v Newton
Considering putting a hyperlink on your website or blog? The case Crookes v Newton, 2009 BCCA 392 [Crookes], may give you pause to reconsider. Although the British Columbia Court of Appeal (“BCCA”) held in Crookes that a website owner will not be liable for hyperlinking to defamatory sites, the decision left a number of unanswered questions that may come into play when the Supreme Court of Canada (“SCC”) decides whether to grant Wayne Crookes leave to appeal on April 1st, 2010.
Mr. Newton is the owner of the website P2Pnet, whose content is being challenged as defamatory. In 2002, P2Pnet went online, claiming to be the first Internet webpage to give daily updates, news, stories and commentary without being “spun, filtered, and pre-digested by vested corporate interests”. His website contains commentary on various issues, including issues involving free speech and the Internet.
In May of 2006, Mr. Crookes began a defamation action against an author for publishing a series of online articles that he calls offensive. Mr. Newton subsequently published a piece on P2Pnet, detailing Mr. Crookes’ action and its implication for those who operate Internet forums. He did not reproduce the content of the offending article or comment on it in any way, but merely linked to it on his website. Mr. Crookes and his lawyers contacted Mr. Newton to remove the link from his site, but Mr. Newton refused to do so.
The BCCA found for Mr. Newton, holding that he was not liable for linking to the allegedly defamatory articles. The court considered three main issues: (i) whether or not hyperlinked articles attract a presumption of publication, (ii) whether hyperlinking is a form of publication, and (iii) whether the volume of hits of a website can lead to an inference of publication.
(i) Mere Hyperlinking Does Not Give Rise to a Presumption of Publication
If the act of hyperlinking gave rise to an automatic presumption of publication, it would would shift the onus onto the defendant to establish that the hyperlink did not, in fact, constitute a publication. But both the majority and dissent concluded that a hyperlink does not attract an automatic presumption of publication. The fact that a website owner put up a hyperlink does not automatically make the link a publication.
The BCCA then considered the question of whether hyperlinking in this particular situation constituted a republication of the allegedly defamatory articles. The court relied on a previous decision, Carter v BC Federation of Foster Parents Assn, 2005 BCCA 398, where it was held that the publication of a website address does not result in republication of the material on the website. Following this precedent, the court in Crookes held that there is “no substantial difference between providing a web address and a mere hyperlink.”
(ii) Circumstances Where Hyperlinking Amounts to Publication
Where the majority and dissent differed was whether the hyperlinking in this case actually amounted to a publication. The dissent set out various factors to consider when determining if a hyperlink was a publication, such as
“the prominence of the hyperlink, any words of invitation or recommendation to the reader associated with the hyperlink, the nature of the materials which it is suggested may be found at the hyperlink (for example, if the hyperlink obviously refers to a scandalous, or obscene publication), the apparent significance of the hyperlink in relation to the article as a whole, and a host of other factors dependant on the facts of a particular case.”
Words of encouragement or invitation that accompany the hyperlink may lead to a finding that the hyperlink was a publication. As the Court stated:
“Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.”
In this case, Prowse J.A., in dissent, held that the Mr. Newton’s piece on P2Pnet, as a whole, contained words of encouragement and invitation that led to the conclusion that the hyperlink was a publication.
The majority disagreed with that conclusion, finding that Mr. Newton did not comment on or reproduce any of the allegedly defamatory material and did not encourage the reader to follow the link to the sites. His articles could be considered to be statements of approbation, or adoption, but were more similar to a footnote for a reader or a card index in a library. The separation between the reader and the defamatory material led the courts to conclude that the hyperlink was not a publication.
(iii) Volume of Hits to a Website Is Insufficient Basis to Infer That User Followed the Hyperlink
The majority also concluded that the number of hits of Mr. Newton’s article was insufficient basis to infer that the user followed the hyperlink. It stated that while there may be cases in which web traffic could support such an inference, this was not one of those cases. The dissent, however, found that on the facts of this case, one could infer publication based on volume of hits.
This case carries great significance for current and future website owners. Prowse J.A.’s dissent expressed a balance between the competing values of freedom of speech and protection of reputation. The relative weight given to both concepts in the defamation context should be “value laden” and “policy-directed.”
Many critics have noted that although this may be a win for Mr. Newton, the impact to bloggers and website owners is uncertain because while the majority didn’t find any liability, it still suggested that hyperlinking to third party content could, under certain circumstances, leave a website owner vulnerable to a defamation suit. The decision leaves many questions unanswered about the circumstances in which a creator of a hyperlink will be found liable for defamatory materials found at a linked site. The decision is also unclear as to what are the implications are for website owners who refuse to remove the hyperlink when asked to do so.
The decision in Crookes presents the SCC with an opportunity to clarify the nature and scope of liability for hyperlinking to third party content. If, however, the Supreme Court decides to deny leave to appeal, the need to reform libel law still stands, especially with regard to Internet communication. Perhaps this area of the law could be clarified through legislation, following in the footsteps of US law.